Hume’s Dynamic Coordination and International Law

• Author: Carmen E. Pavel
• DOI: 10.1177/0090591720921831
• Published date: 01 April 2021
• Date: 01 April 2021

https://doi.org/10.1177/0090591720921831

Political Theory

2021, Vol. 49(2) 215 –242

© The Author(s) 2020

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DOI: 10.1177/0090591720921831

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Article

Hume’s Dynamic

Coordination and

International Law

Carmen E. Pavel1

Abstract

At the heart of the tension between state autonomy and international law is

the question of whether states should willingly restrict their freedom of action

for the sake of international security, human rights, trade, communication,

and the environment. David Hume offers surprising insights to answer this

question. He argues that the same interests in cooperation arise among

individuals as well as states and that their interactions should be regulated

by the same principles. Drawing on his model of dynamic coordination, I will

reconstruct the Humean case for developing international law into a more

robust legal system and also highlight the limitation of Hume’s account of

justice for such a reconstructive project. Hume’s lessons are enduring; we

must strengthen the essential features of international law that allow states

and individuals to reap the benefits of its protections, such as nonoptional

rules that articulate a moral minimum, courts with compulsory jurisdiction,

and stronger mechanisms of enforcement.

Keywords

David Hume, international law, state sovereignty, rule of law, dynamic

coordination

1Department of Political Economy, King’s College London, London, UK

Corresponding Author:

Carmen E. Pavel, Associate Professor, Department of Political Economy, King’s College

London, Bush House (North East Wing), 30 Aldwych, London, WC2B 4BG, UK.

Email: carmen.pavel@kcl.ac.uk

921831PTXXXX10.1177/0090591720921831Political TheoryPavel

research-article2020

216Political Theory 49(2)

Do individuals and states have reason to create and submit to the rules of

international law? The tension between sovereign independence and interna-

tional law is at the heart of recent initiatives by states to withdraw from the

Paris Agreement or the International Criminal Court.1 Yet one might think

that states cannot have it both ways; they cannot reap the benefits of a system

of international law that limits negative externalities from other states,

restricts the use of violence, and ultimately guarantees a sphere of autono-

mous state action and at the same time claim that international law is optional

and their autonomy absolute. Just as individuals cannot benefit from domes-

tic law while at the same time rejecting any interference with their freedom,

states cannot be both restricted by international law and remain completely

free to act according to the whims of their leaders or citizens. David Hume

(1711–1776) offers a surprising resource for this argument, because he claims

that the same reasons for adopting and developing a legal system at the

domestic level also hold at the international level, even if the content and

character of those rules will be different.

In this article I will explore and develop this Humean claim. Section XI of

the Treatise on Human Nature on the Law of Nations offers exceptional

insights into the similarity and complementarity of domestic and interna-

tional law.2 Hume believes that the needs of individuals and states for social

coordination are analogous: “The advantages, therefore, of peace, commerce,

and mutual succour, make us extend to different kingdoms the same notions

of justice, which take place among individuals.”3 At the domestic level,

Hume is famous for providing an account of dynamic coordination as the

origin of law.4 I will show that the evolution of international customs and

treaties offers an important study in Humean dynamic coordination.

This exploration takes place in the context of a dominant mood marked

by skepticism of the authority of existing international law. International law

is said to be in turn inconsequential to state behavior, the product of irratio-

nal state action that goes against national interest in a world of anarchy, or

detrimental to the project of democratic self-determination. Eric Posner’s

string of latest books aims to demonstrate the futility of international law

when he says that “International law is . . . endogenous to state interests. It

is not a check on state self-interest; it is a product of state self-interest.”5 Due

to the inherent inward-looking preferences of states, it is incapable of creat-

ing order or solving collective action problems. Therefore we should main-

tain “a crisp analytic distinction between intrastate cooperation, which is

capable of solving major nation-level collective action problems, and inter-

state cooperation, which is itself subject to collective action problems and

thus cannot solve them, except in a very rudimentary fashion.”6 Posner is

part of a new wave of legal scholars influenced by international relations